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Home My WebLink AboutO-2010-3302 closing that portion of the alley in Block 13REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested: 12-13-10 Requested By: K ni h Ad nx Department: Police Report: Resolution: Ordinance: X Exhibits: Ordinance Adding Article VI "Prohibition of Certain "Smokins Substances" to Chanter 42 "Miscellaneous Offenses" of the Code of Ordinances Bud et Source of Funds: Account Number: Amount Budgeted: Amount Requested: Budgeted [tem: YES NO SUMMARY & RECOMMENDATION Staff is recommending the addition of Article VI "Prohibition of Certain Smoking Substances" to Chapter 42, "Miscellaneous Offenses", of the Code of Ordinances of the City of La Porte. When ingested, substances commonly referred to as synthetic marijuana produce powerful intoxicating effects, similar to THC or organic marijuana, but are not yet categorized as illegal controlled substances under state or federal law. With the manufacture, sale, and use of synthetic marijuana becoming more and more prevalent, it has become necessary for law enforcement to look for ways to control its availability within the community in order to ensure the safety and well-being of the citizens of LaPorte. As such, staff recommends that City Council approve the passage of an ordinance prohibiting the possession, sale or use of the illegal synthetic smoking substances and amend Appendix B of the Code of Ordinances adding the fine amount for the offense. Action Required by Council: Approve Ordinance adding Section VI "Prohibition of Certain Smoking Substances" to Chapter 42, "Miscellaneous Offenses", of the Code of Ordinances of the City of La Porte. Ron Bottoms, City Manager Date /)nlo - Z>IU ORDINANCE NO. MZ, AN ORDINANCE AMENDING CHAPTER 42 "MISCELLANEOUS OFFENSES" OF THE CODE OF ORDINANCES OF THE CITY OF LA PORTE BY ADDING ARTICLE VI. "PROHIBITION OF CERTAIN SMOKING SUBSTANCES", TO BAN THE USE OR POSSESSION OF SYNTHETHIC NARCOTICS WHEN MEETING CRITERIA ESTABLISHED THEREIN; CONTAINING A SEVERABILITY CLAUSE; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; PROVIDING THAT ANY PERSON VIOLATING THE TERMS OF THIS ORDINANCE SHALL BE DEEMED GUILTY OF A MISDEMEANOR AND UPON CONVICTION SHALL BE FINED IN A SUM NOT TO EXCEED FIVE HUNDRED DOLLARS ($500.00); PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of La Porte, Texas (herein, the "City"), being a home -rule city having authority to utilize police power regulation for the health, safety and general welfare of the citizens of the City; and, WHEREAS, the laws of the State of Texas, including those found in Chapter 51 of the Texas Local Government Code, and the La Porte City Charter provide the City authority to adopt ordinances for the good government, peace, order, and welfare of the municipality; WHEREAS, the City Council of the City of La Porte, Texas has determined that certain businesses within the City may be selling certain substances that when ingested produce intoxicating effects similar to THC or marijuana; and WHEREAS, the aforementioned substances are not yet categorized as illegal controlled substances under state or federal law; and WHEREAS, these substances, which are described herein below, are often used as an alternative to marijuana and are potentially dangerous to users and further, the long term effects are not yet known; and WHEREAS, the City Council of the City of La Porte, has determined that it is in the best interest of the public health, safety and welfare to prohibit the substances; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE, TEXAS: Section 1. The foregoing recitals are hereby found to be true and correct and are hereby adopted by the City Council and made a part hereof for all purposes as findings of fact. Section 2. Chapter 42 "Miscellaneous Offenses", is hereby amended by adding a new Article VI. "Prohibition of Certain Smoking Substances" of the Code of Ordinances of the City of LaPorte, Texas, which shall read as follows: "ARTICLE VI. PRORIBTION OF CERTAIN SMOKING SUBSTANCES. Section 42-120. Definitions The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning. Illegal smoking substance means any plant or other substance, whether described as tobacco, herbs, incense, spice of any blend thereof, regardless of how the product is marketed for intended uses, which includes any one or more of the following chemicals: 1. Salvia divinorum or salvinorin A; all parts of the plant presently classified botanically as salvia divinorum, whether grown or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts, derivative, mixture or preparation of such plants, its seeds or extracts; 2. 2-{(1R, 3S)-3 hydroxycyclohexyl}-5-(2-mehylocatan-2-yl) phenol (also known as CP47, 497) and homologues; 3. Derivative, mixture or preparation of such plant, its seeds or extracts; 4. (6aS, IOaS)-9-(hydromehyl)-6, 6-dimethyl-3-(2-mehyloctan-2-yl)-6a, 7, 10, 10 atetrahydrobenzo [c) chormen-1-ol) (also known as HU -211 or Dexanabinol); 5. 1-Pnetyl-3-(1-naphythoyl) indole (also known as JWH-018); of 6. Butyl-3-(1-naphthoyl) indole (also known as JWH-073) 7. Methylenedioxypyrovalerone (MDPV); 8. (�l)-20-Carbomethoxy-3p-(4-fluorophenyl) tropane (0-CFT, WIN -35,428); or 9. Mephedrone (also known as 4-methylmethcathinone (4 -MMC), or 4-methylephedrone) 10. Or similarly structured chemical analogs. Products containing some or all of the above substances are currently being marketed under the following commercial names: "K-2", "K-2 SUMMIT", "K-2 SEX", "GENIE", "DASCENTS", "ZOHAI", "SAGE", "SPICE", "KO KNOCKOUT 2", "SPICE GOLD", "SPICE DIAMOND", "YUCANTAN FIRE", "SOLAR FLARE", "PEP SPICE", "FIRE N' ICE", "SERENITY", "IVORY WAVE", "VANILLA SKY", "PURE IVORY", "PURPLE WAVE", "CHARGE+", "OCEAN BURST, SEXTACY" AND "SALVIA DIVINORUM". The above product names are not an all inclusive list of products which contain the substances, but are listed for reference purposes. Ingestion device means any equipment, product or material that is used or intended for use in ingesting, inhaling or otherwise introducing an illegal smoking substance into the human body including but not limited to: 1. a metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe with or without a screen, permanent screen, hashish head, or punctured metal bowl; 2. a water pipe; 3. a carburetion tube or device; 4. a smoking or carburetion mask; 5. a chamber pipe; 6. a carburetor pipe; 7. an electric pipe; 8. an air -driven pipe; 9. a chillum; 10. a bong, or 11. an ice pipe or chiller Section 42-121. Use or Possession of Illegal Smoking Substances It shall be unlawful for any person to use, buy, possess, or purchase any illegal smoking substances. Section 42-122. Sale of Illegal Smoking Substances It shall be unlawful for any person to sell, advertise or publically display for sale any illegal smoking substances. Section 42-123. Acquisition of Illegal Smoking Substance It shall be unlawful for any person if, with the intent to acquire any illegal smoking substance, he or she requests, commands or attempts to induce another to sell, donate or otherwise transfer or deliver any illegal smoking substance. Section 42-124. Possession of ingestion device. It shall be illegal for any person to use or possess an ingestion device for the purpose of using the device to inject, ingest, inhale or otherwise introduce into the human body an illegal smoking substance. Section 42-125. No defense. It is not a defense to prosecution under this article that 1) no monetary consideration was tendered to the person solicited; or 2) the person solicited was unable or unwilling to transfer or deliver an illegal smoking substance. Section 42-126. Affirmative Defenses. It is an affirmative defense for a person charged with use or possession of an illegal smoking substance that the use or possession was pursuant to the direction or prescription of a licensed physician or dentist authorized to direct or prescribe such act. It is an affirmative defense that the sale or possession on Salvinorin A was in conjunction with ornamental landscaping and used solely for that purpose. It is an affirmative defense for a person charged with use or possession of an illegal smoking substance that the illegal smoking product was in the possession of or being used by a governmental entity for a health purpose, research and education, or a similar program. It is an affirmative defense to any prosecution under section 42-123 that 1) the solicitation is made in furtherance of a transaction that would not constitute a violation of applicable law; or 2) the solicitation is made by a peace officer in the lawful discharge of his duties or by a law enforcement agent acting in the lawful discharge of an official duty. Section 42-127. Penalty A person who violates any provisions of this article shall be guilty of a Class C misdemeanor and upon conviction shall be fined an amount not to exceed five hundred dollars ($500.00). Section 4. Open Meetings. The City Council officially finds, determines, recites, and declares that sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; and that this meeting has been open to the public as required by law at all times ruling which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. Section 5. Severability. Should any section or part of this ordinance be held unconstitutional, illegal, or invalid, or the application to any person or circumstance for any reasons thereof ineffective or inapplicable, such unconstitutionality, illegality, invalidity, or ineffectiveness of such section or part shall in no way affect, impair or invalidate the remaining portions thereof; but as to such remaining portion or portions, the same shall be and remain in full force and effect and to this end the provisions of this ordinance are declared to be severable. Section 6. Effective Date. This Ordinance shall be effective fourteen (14) days after its passage and approval. The City Secretary shall give notice of the passage of this ordinance by causing the caption hereof to be published in the official newspaper of the City of La Porte at least once within ten (10) days after the passage of this ordinance, in accordance with the provisions of Chapter 52, Texas Local Government Code, and the City of La Porte Charter. PASSED AND APPROVED on the first reading on the day of �P�iollil�i2010. t�5 ter, By: F , LoAy Rigby Mayor ATTEST: Martha A. Gillett City Secretary APPROVED: Clark T. Askins Assistant City Attorney